Judgement Appeal from a judgment and decree of the High Court in its appellate jurisdiction (August 1, 1910) reversing a judgment and decree of the High Court in its original jurisdiction (March 4, 1910). Law. Rep. 41 Ind. App. 176 ( 1913- 1914) Ranimoni Dassi V. Radha Prosad Mullick 53 The suit, which was brought in 1904 to construe the will of one Hari Das Dutt, came before the Judicial Committee in 1908, the decision of their Lordships being reported at L. R. 35 Ind. Ap. 118. The present appeal arose out of an application in the same suit to further construe the effect of the clause there in question. The testator died in 1875, leaving a widow and two daughters, Ranimoni Dassi (the first appellant) and Premmoni Dassi. Ranimoni was married but had no children; Premmoni had living in 1875 three sons, Radha Prosad Mullick, Kasi Prosad Mullick, and Jyoti Prosad Mullick (who died unmarried before the suit). After the death of her father Premmoni had two more sons, Peary Lal Mullick and Behary Lal Mullick. The widow died in 1904, and Ranimoni Dassi thereupon instituted in the High Court the present suit against Premmoni Dassi, the four surviving sons of the last named, and her own adopted son, for the construction of the will of Hari Das Dutt and for administration of his estate. The clause of the will of which the construction was sought was, so far as material, in the terms set out in the head-note. The High Court, affirming the construction adopted by the lower Court, declared that the plaintiff Ranimoni Dassi and the defendant Premmoni Dassi "are each absolutely entitled to a moiety of the estate of the testator including the additions and accretions thereto." It was held that it was premature to decide whether the gift to the daughters was defeasible in the event of either of them dying without male issue, but liberty to apply was given. By an Order in Council made on August 13, 1908, upon an appeal, there were substituted for the words above quoted the words " are in the events that have happened entitled to the estate of the said testator including the additions and accretions thereto in equal shares for life and with benefit of survivorship between them," and in other respects the decree of the High Court was affirmed. This is the decision reported at L. R. 35 Ind. Ap. 118. On February 17, 1910, Premmoni Dassi died, and on February 25, 1910, the present application was made by Radha Prosad Mullick, under the liberty to apply, contending that upon her decease her moiety passed to her sons born before the death of the testator, and not by survivorship to Ranimoni Dassi. On March 4, 1910, the application was heard by Fletcher J. and was dismissed by him. The learned judge referred to the terms of the judgment of the Judicial Committee delivered by Sir Andrew Scoble and said that the judgment implied that the daughters took by survivorship from one another, the sons of Premmoni Dassi only taking in remainder. The first respondent appealed to the High Court in its appellate jurisdiction, and that Court (Jenkins C.J. and Woodroffe J.) allowed the appeal. The learned Chief Justice, with whose judgment Woodroffe J. agreed, after pointing out that the event of Ranimoni Dassi being predeceased by Premmoni Dassi, the latter leaving sons, was not within the contemplation of their Lordships when the appeal was decided, said "Now the will contemplates two events and the provision applicable in the event that has happened is in these terms v in the case of the death of either daughter leaving sons, the share of such daughter is to be paid to such her son or sons, share and share alike," and in connection with this provision the opening words of the gift have to be borne in mind. Though this part of the clause has not been specifically construed by their Lordships of the Privy Council they have indicated their view as to what the testator meant, and have stated that according to the true construction of the will the intention of the testator was to create in favour of his daughters an estate Law. Rep. 41 Ind. App. 176 ( 1913- 1914) Ranimoni Dassi V. Radha Prosad Mullick 54 for life with a remainder over to their sons. It seems probable that the word remainder was not used with the special significance that attaches to it in English real property law, but was borrowed from the language of the High Court (see I. L. R. 83 Calc. at p. 965) to emphasize the contrast between the view taken by the High Court and the Privy Council. It seems probable that the word remainder was not used with the special significance that attaches to it in English real property law, but was borrowed from the language of the High Court (see I. L. R. 83 Calc. at p. 965) to emphasize the contrast between the view taken by the High Court and the Privy Council. Accepting then this as the intention of the testator is there any legal obstacle in its way? Now it has to be borne in mind that after the testators death two sons were born to Premmoni, the defendants Peary Lal and Behary Lal, and that of her sons living at the testators death Jyoti Prosad predeceased her." The learned Chief Justice then referred to ss. 100 and 102 of the Succession Act (X. of 1865), which are incorporated in the Hindu Wills Act (XXI. of 1870) by s. 2, and held that by their effect the two sons of Premmoni Dassi born after the death of the testator could not take under the clause. He held, however, that the interest vested in the sons born before the death was not divested thereby, and that Radha Prosad Mullick, Kasi Prosad Mullick, and the representatives of Jyoti Prosad Mullick were accordingly entitled in equal shares to the moiety of the estate enjoyed by their mother. Ranimoni Dassi and her adopted son appealed. No appeal was entered by Peary Lal Mullick or Behary Lal Mullick. Radha Prosad Mullick died pending the appeal. Sir R. Finlay, K.C., and Kenworthy Brown, for the appellants. Upon the true construction of the clause the appellant Ranimoni Dassi is entitled by survivorship upon the death of Premmoni Dassi. This appears to have been the view of the Judicial Committee upon the former appeal Radha Prosad Mullick v. Ranimoni Dassi. (( 1908) L. R. 35 Ind. Ap. 118, at pp. 129, 130.) De Gruyther, K.C., and Dunne, for the respondents (he heirs and representatives of Radha Prosad Mullick (deceased) and Kasi Prosad Mullick, were not called upon. Ross, K.C., and O’Gorman, for the respondents Peary Lal Mullick and Behary Lal Mullick. These respondents did not appeal. In the event of the appeal being allowed, however, would be interested parties and, it is submitted, are entitled to their costs out of the estate. The judgment of their Lordships was delivered by LORD MOULTON. Ross, K.C., and O’Gorman, for the respondents Peary Lal Mullick and Behary Lal Mullick. These respondents did not appeal. In the event of the appeal being allowed, however, would be interested parties and, it is submitted, are entitled to their costs out of the estate. The judgment of their Lordships was delivered by LORD MOULTON. Their Lordships have had an opportunity of considering the judgment of the Court below on the question as to whether on the death of Premmoni Dassi leaving male issue the estate passed over for life to the appellant, Ranimoni Dassi, and they are of opinion that it is correct, and is based on correct reasons. They will therefore humbly advise His Majesty to dismiss this appeal. With regard to the contention of the appellants that the Court was wrong in holding that no grandchildren of the testator born, or adopted, after the death of the testator on October 30, 1875, could take under his will, their Lordships will not advise His Majesty to make any order except that the present advice is not to prejudice the position of the second appellant if and when such question comes before a Court for decision. The costs of all parties as between solicitor and client will come out of the estate.